United States v. Costello, Susan ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 01-2839
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SUSAN COSTELLO,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:98-CR-150—James T. Moody, Judge.
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ARGUED SEPTEMBER 6, 2002—DECIDED SEPTEMBER 26, 2002
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Before POSNER, EASTERBROOK, and DIANE P. WOOD, Circuit
Judges.
POSNER, Circuit Judge. The defendant was convicted of
conspiracy to violate, and of violating, 18 U.S.C. § 1952(b),
which makes it a federal crime to use the mails, or instru-
mentalities of interstate commerce, to commit offenses
relating to prostitution that are criminal under the law of
the state in which the offenses were committed. The fed-
eral sentencing guidelines provide for a four-level increase
in the defendant’s base offense level “if the offense in-
volved (A) prostitution and (B) the use of physical force,
or coercion by threats or drugs or in any manner.” U.S.S.G.
§ 2G1.1(b)(1). The judge found use of physical force and
2 No. 01-2839
sentenced defendant to 70 months in prison; had he not
found use of physical force, the maximum sentence would
have been, by our calculations, only 57 months. We must
decide whether the force or other coercion must be di-
rected against a prostitute, and, if so, whether the district
court’s imposition of the four-level increase can stand. The
defendant presents additional issues, but we have con-
sidered and rejected them and they lack sufficient merit
to warrant discussion.
The conspirators operated adjacent bars that offered
striptease shows. During intervals between the shows,
the striptease dancers would sit with the patrons of the
bars, and if the patrons wanted would have sex with them,
either in the basement beneath one of the bars or in the
motel in which the other bar was located, for a price. Thus
the dancers doubled as prostitutes. One of the bars em-
ployed a bouncer named Dave Brown who was prone
to violence. Once, when a customer called one of the pros-
titutes a foul name (spelled “fowl” in the transcript), Brown
“bashed [the customer’s] head into the jukebox and
threw him out the door.” Another time, when the bar
caught fire, Brown shot at a man (presumably the sus-
pected arsonist) who drove away in a truck. On still an-
other occasion Brown pulled a gun “when Christina [one
of the prostitutes] was climbing in a truck and the truck-
er wouldn’t stop.” Obviously these were uses of physical
force, but they were not directed against the prostitutes
and indeed the first and probably the third and possibly
the second as well were in defense of the prostitutes. There
was also however evidence that Brown once kicked a
chair as a joke and one of the prostitutes, who was drunk,
“took it a little bit overboard,” and Brown “put the chair
on her throat and was choking her.” The defendant de-
scribes this enigmatic incident as just horsing around.
There was also evidence that the conspirators sometimes
No. 01-2839 3
searched the prostitutes’ lockers (but surely this doesn’t
amount to the use of physical force or coercion in any sense
relevant to the guideline) and conducted strip searches of
the prostitutes, though when and for what purpose and
whether it was connected with their services as prosti-
tutes—for they were also dancers—is not indicated.
The judge in his very brief statement in regard to the
increase in the base offense level on account of physical
force did not distinguish between the use of force against
the prostitutes and against others. All he said was that “it
was reasonably foreseeable by [the defendant] that Mr.
Brown certainly was a bouncer, and bouncers’ duties in-
clude keeping patrons and employees who were the danc-
ers and the prostitutes in line.” The judge apparently gave
no weight to the strip searches or the locker searches,
though these are mentioned by the government in its
brief; he just refers to the use of force by the bouncer. The
presentence report has a little more on force: “a Cooperat-
ing Witness (CN) advised FBI agents that Brown would
rough up some of the girls that worked in the clubs. If a
girl was a good money maker for the club and the girl tried
to quit, Brown would hurt them in some way. Having
Brown hurt the girls was Costello’s way of trying to keep
them employed.” But the government’s brief does not
mention this evidence and there is no indication that the
judge credited or even considered it. Whether the judge ac-
cepted or rejected the defendant’s argument that Brown’s
choking the prostitute was in fun is unclear, and his stat-
ing that bouncers’ duties include keeping patrons as well
as employees in line suggests that he believed it a matter
of indifference whether force was directed at customers
or at the prostitutes. He may have given no weight at all
to the choking incident, about which there is nothing
more in the record than we have mentioned, and based
the four-level increase on the undoubted fact that Brown
4 No. 01-2839
roughed up one customer, drew a gun on another occa-
sion, and actually fired at someone on still another occa-
sion. So the question whether the guideline has reference
to force directed against someone other than the prosti-
tutes used in the conspiracy is critical to whether the judge’s
ruling can be upheld.
The question has not arisen in previous cases, though
it may be significant that all of them involved the use
of force or other coercive methods against the prostitutes
themselves, not against patrons or other third parties.
See United States v. Williams, 291 F.3d 1180, 1197 (9th Cir.
2002) (per curiam); United States v. Evans, 272 F.3d 1069,
1097 (8th Cir. 2001); United States v. Anderson, 139 F.3d 291,
297-98 (1st Cir. 1998); United States v. Campbell, 49 F.3d 1079,
1085-86 (5th Cir. 1995); United States v. Sabatino, 943 F.2d 94,
102-04 (1st Cir. 1991). The court in Williams terms the use
of “physical force as a means of control over R.K. in order
to ensure her continued participation in prostitution activ-
ity . . . precisely the conduct that the adjustment is aimed
at punishing,” 291 F.3d at 1197, and we think this is cor-
rect. The examples in the application notes to the guideline
are limited to such cases, see U.S.S.G. § 2G1.1 Application
Note 2, and the history and logic of prostitution offenses
argue strongly for the limitation. Prostitution is a business,
and when carried on as is common in conjunction with
striptease dancing—the dancers providing a thin cover for
the activity and also advertising their charms to the
customers—involves an employment relation between the
prostitutes and the managers of the business. But since it
is an illegal business (section 1952 is confined to illegal
prostitution, and so would not apply to prostitution in
the handful of counties in Nevada in which brothels are
legal), employers cannot use the law of contracts to con-
trol the behavior of their employees. The tendency is to
substitute force, the hope being that the persons against
No. 01-2839 5
whom the force is being used or threatened, namely the
prostitutes, will be reluctant to complain to the police
since they are themselves engaged in a criminal activity.
The guideline in question defines in effect an aggravated
form of the prostitution offense that occurs when the
ringleaders resort to force to keep the prostitutes in line.
Defined more broadly, for example to include rough-
ing up unruly customers, the guideline would have the
paradoxical effect of increasing the risks to prostitutes.
After all, it is not only their employers, but also their
customers, who, knowing that prostitutes, engaged as they
are in an illegal activity, are unlikely to complain to the
police, are more likely than is normal to use force against
them. The ordinary law of property permits a property
owner, including a business establishment, to use gen-
tle force (“molliter manus imposuit”—literally, he placed
his hands gently) to expel a person who refuses without
right to leave the premises when told to do so. See, e.g.,
Billingsley v. Stockmen’s Hotel, Inc., 901 P.2d 141, 145 (Nev.
1995). The use of such force would come within the literal
terms of the guideline if the government’s position were
correct. That makes very little sense that we can see. But
even if the government limited its position (as surely it
should) to a degree of force or method of coercion that
an ordinary businessman would be forbidden to employ
in defense of his property, the mere fact that the bounc-
er who goes too far works for a bar that is also a brothel
does not make the prostitution offenses committed there
aggravated offenses, for encountering an ungentle bounc-
er is an ordinary risk of patronizing a bar, rather than any-
thing special to prostitution.
So the sentence must be vacated and the case remanded
for reconsideration of the four-level increase. Since the
strip searches may resurface in the remand, we caution
6 No. 01-2839
the district judge about assuming that they are coercive
per se. They are not, any more than being ejected from a
bar by a bouncer who uses only gentle force is. There are
some jobs, for example diamond mining, in which strip
searches are reasonably employed to prevent theft by
employees. Prostitution is not one of them; but it is pos-
sible that the conspirators were concerned about their
employees’ dealing in drugs on the side, rather than bent
on trying to intimidate and control them. A further com-
plication is that the conspirators were running a bar and
striptease parlor as well as a brothel, and the strip
searches may have been connected to the facets of their
business that were not prostitution. That is another mat-
ter to be taken up on remand. In all other respects the
judgment is affirmed.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-26-02